TUPE: Single employee can amount to an organised grouping

In Rynda (UK) Ltd v Rhijnsburger [2015], the Court of Appeal
considered whether a single employee could amount to an 'organised
grouping of employees' for the purposes of TUPE.

TUPE applies to a 'relevant transfer'. This can be either,
a transfer of a business, or, a service provision change - i.e.
outsourcing.

In Rynda, a property manager was solely responsible for managing
a number of Dutch properties for a third-party client. She
worked on her own and not as part of a team.

The case also touched upon the question of assignment.
Assignment to an organised grouping is largely a question of fact,
since the TUPE regulations do not define the term.
Considering the percentage of time spent working in the organised
grouping to be transferred is useful, but not determinative.

In Rynda, the fact that the employee had responsibility for
properties outside of the Dutch property portfolio did not
undermine the finding that she was assigned to it. The
employee spent the majority of her time managing the Dutch
properties. It was not relevant that the scope of the
employee's role was under review.

The Court of Appeal laid down a four stage test in cases of this
type, holding that an employment tribunal should:

Identify the service provided to the third party client;

Look at the activities that the employees are performing in
providing that service;

Identify the employees who ordinarily carry out the
service;

Consider whether that employees have as their principal
purpose, the carrying out of the listed activities.

Having applied this test to the facts, the employment tribunal
had been correct to find that that the employee was assigned to the
Dutch property portfolio and that she was doing so without the
assistance of anyone else.

This was not a case like Eddie Stobart Ltd v Moreman and others
[2012] where groups of employees were assigned to particular client
work in a random way, as a consequence of how shift patterns
operated. There was a very clear assignment to the relevant
property portfolio such that the employee was dedicated to it.

The upshot of this case is that one individual can amount to an
'organised grouping' for the purposes of TUPE and is a helpful
reminder not to overlook the consequences of TUPE, in cases where
one might otherwise think it does not apply.